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to 1818. Caro says the governor exercised | Court of the United States. As to the land
case apon facts disclosed by the claimants' evi. | fortifications in a time of war. It is reasondence in the former cause, and the inferences able, then, to conclude that European monarchs. and arguments which may be drawn from in the construction of permanent fortifications, them, because the court did not do so, in its in the new world, upon Indian lands before it decision, in consequence of the admission of had been granted by the sovereign, or permit. counsel “that the land covered by the fort and ted to be alienated by the Indian, intended to appurtenances, to some distance around it," appropriate so much of the land adjacent to a were not contended for.
fortification as was necessary to defend it. In addition to what has been said, however, That it was so intended in the instance of St. in respect to St. Marks and the appurtenant Marks is strongly corroborated by the testi: land not being within the grant from the mony of Col. Butler, who says the woods had Indians to the claimants, we remark that the been cleared away by the authorities at St. subject may be satisfactorily disposed of by a Marks to the distance of a mile and a half reference to the second article of the treaty from the walls. Another witness says no with Spain. "His Catholic Majesty cedes to buildings were erected outside of the fort be. the United States, in full property and sov. fore 1827, and then by permission of the Unit. 90*) ereignty, all the territories *which be- ed States. It is hard to resist the conclusion long to him, situated to the eastward of the that such a clearing before the sale by the In. Mississippi, known by the name of East and dians, without the cultivation or occupancy of West Florida; the adjacent islands dependent any part of it, by the grantees from the time on said provinces; all public lots, and squares, of the Indian sale to the surrender of the fort vacant lanus, public edifices, fortifications, bar to the United States, does not indicate an inracks, and other buildings, which are not pri- tention upon the part of the authorities of vate property.” In construction of this article, Spain to reserve some land adjacent to the fort it will be admitted that the last member of the for military purposes; and the acquiescence of sentence cannot refer to any of the enumerated the purchasers, that though within the boundcessions, notorious as public property, or that aries of the grant, the fort and land attached it must be confined to the terms, “other build- to it by military usage was not intended to be ings in connection with it.” The treaty then conveyed. Nor can we admit, as it was argued secures to the United States the fort of St. by the counsel of the appellants, that the inMarks, and so much land appurtenant to it stances cited in the record of grants of land, up as, according to military usage, was attached to the walls of fortifications, by the Spanish generally to forts in Florida or the adjacent authorities in Florida and Louisiana, disprove colonies. Was there any such usage, and has the existence of a military usage to reserve it been established by sufficient testimony to land adjacent to forts in them. Those instances sustain the judgment of the court below? We are exceptions out of the military laws of Spain, think there was, and that the proofs are suf- as contained in the royal ordinances; whichi deficient. At the instance of the claimants, the clare that "a radius of one th, usand five hun. testimony of the director of engineers was dred varas is measured from the salient angles taken by order of the Governor-General Tacon. of the covered way." We do not think it necHis evidence on the record before us is that essary to remark further upon the opinion giv. "a radius of fifteen hundred Castillian varas is en by the chief engineer, in respect to the ineasured from the salient angles of the manner in which such titles were acquired to covered way, all around the fortification.” That land adjacent to fortifications, or the extent of such was the rule, is confirmed by a document the military jurisdiction over them, than to obintroduced by the claimants, as evidence in this serve the fact of certain reservation being decase. In 1801, a petition was presented to Gov. clared by him, as a fact; we require something crnor White for a grant of land at Macariz. more than his conclusion or inference that there He referred it to the chief engineer. The en. was no reservation according to the military gineer reported it to be within one thousand usage and ordinances of Spain, in the instance five hundred yards of the castle, “that it can of St. Marks. not be cultivated in corn, nor can ditches, or *Our opinion is that the court below [*92 thorn fences be allowed; that plants of a low has fully apprehended and executed the judg. growth, and vegetables may be permiited to be ment of this court, and its judgment is accord. cultivated, and it may be allowed for the se: ingly affirmed. curity of the produce to erect simple post and rail fences, which may be sufficient to prevent
This case came on to he heard on the trananimals from breaking in." Under these re
script of the record from the Superior Court of strictions it was granted, so that it could only the Middle District of Florida, and was argued
by counsel; on consideration whereof, it is or. be used in such
could not interfere with the defensive and offensive of the said Superior Court in this case be, and
dered and decreed by this court that the decree power of the castle. Several witnesses were
the same is hereby affirmed. examined on this point; all of them concur in saying a fortress cannot be defended unless it has the command of the ground around it to a considerable extent. Colonel Murat gives as
'HENRY BRUSH, Appellant, the usage of the European armies, that from the salient angles of the covered way, a radius of three thousand four hundred yards is
JOHN H. WARE et al., Appellees. marked, in which it is not permitted to erect Patent for land in Virginia reserve in Ohio, any permanent buildings, or embankment, or Virginia land law-court can go behind 91*] stone fences, or "ditches. We know it, patent to examine ty-what makes valid also, to be the usage of all civilized nations, to entry-executor no power over real estate essert such rights over the ground adjacent to except under will-caveat emptor.
The exccutor of an officer in the Virginia line on the continental establishment, obtained a certifi: acts and resolutions of Congress, to four thou.
vation. John Hockaday was entitled, under the executor, for four thousand acres of land in the sand acres in the Virginia military reserve. Virgipla reserve, in the State of Ohio, and after. Afterwards, on the motion of the complainants, made, and warrants issued in favor of the assignees, the bill was dismissed as to all the defendants and a survey was made under one of the warrants, except Henry Brush; and a decree having been in favor of one of the assignees, a bona fide pur entered in the Circuit Court in favor of the chaser, who obtalned a patent from the United complainants, Henry Brush prosecuted this apStates for the land, bad no right, under the will, to sell the land to peal. which the testator was entitled. The patent was As the heirs of John Hockaday, the comsession of the land from 1808. The heirs of the of: plainants claimed title to the land in question. ficer, entitled to the land for military services in John Hockaday made his will, disposing of his 839, some of them being minors, éled a bill to com. personal property only; and Ware, one of tho pel the patentee to convey the land held by him to executors, proved the will. As executor of with notice of the prior title of the heirs, and that Hockaday, he made a fraudulent sale of the he was bound to make the conveyance asked from military right of the testator to one Joseph him. Whatever doubts
Ladd, and having obtained from the Executivo might have existed on the question whether the Council of Virginia a certificate of the right of court can go behind the patent for lands, and ex: John Hockaday for the land to which he was land against the patent in Ohlo and Kentucky, this entitled, he assigned the same to John Ladd. question has been long judicially settled; and this On this certificate Ladd obtained, as the as. court, following the decisions of those States, have signee of Ware, executor of John Hockaday, also decided it. The cases of Bodley et al. v: four warrants, each for one thousand acres. Taylor, 5 Cranch, 196, and Polk's Lessee v. Wendall, 9° Cranch, 93 ; 5 Wheat. 293 ; Miller et al. v. Part of the land under one of these warrants, Kerr. ? Wheat.' 1; floofnagle v. Anderson, 7 Wheat through assignments to George Hoffman and 212, clted.
A patent appropriates the land called for, and 18 others, became the property of Henry Brush; conclusive against rights subsequently acquired. who, under an entry made by George Hoffman, But when an equitable right, which originated be obtained a patent for the land held by him fore the date of the patent, whether by the first en
from the United States, on the twenty-third try or otherwise, is asserted, it may be examined.
A patent for land under the Virginla land law, of January, 1818.
To make a valid entry, some object of notoriety perior title of the heirs of John Hockaday, and
entry, the bold court, be directed to convey the land to them, er of a warrant who enters the same land with full they having the prior equity. notice of the first entry will bave the better title. In the answer of Brush, he says the land in And so if an entry be not specific as to the land ini controversy was granted to him by patents the subsequent locator, nor can it be made good dated January 23, 1818; that he has no recol. by a subsequent purchase without notice. But with lection or belief that he ever say the warrant, those exceptions, the doctrine of constructive notice has been considered applicable to military titles entry, or survey, or copies of either; that he is as in other cases, and no reason is perceived why an innocent purchaser for a valuable consider this rule should not prevail. From the nature of ation; he denies all notice of complainant's these titles and the force of circumstances, an arti; claim, at or before the emanation of the patwhich has long formed the basis of title to real
es-ents, and all knowledge of any fraud; he says tate in a large and fertile district of country. The he believes that the purchase by Ladd was peculiarities of this system having for half
a cen: fair, and for a valuable consideration; that he served; but to extend them would be unwise and had no knowledge what the will of Hockaday Impolitic.
contained: he says he has been in possession, No principle is better established than that a
under claim of title, since 1808, and has made purchaser must look to every part of the title which is essential to its validity.
lasting and valuable improvements, and insists 941. *An executor has not, ordinarily, any power that complainants ought to be barred by the over the real estate. His powers are derived from statute of limitations, and that at any rate he the will, and he can do no valid act beyond his authority. Where a will contains no special provi- ought to be paid for all improvements. And by sion on the subject, the land of the deceased de his amended answer, he claims compensation scends to his helrs; and this right cannot be for taxes paid, and for an allowance for a devested or impaired by the unauthorized acts of the executor.
locator's share; for expenses in perfecting the The law requires reasonable diligence in a nur: title, and claims all the surplus land in the sur. chaser to ascertain any defect of title. But when such defect 18 brought to his knowledge, no incon
veys. venience will excuse him from the utmost scrutiny. The case was argued by Mr. Mason for the He 18 a voluntary purchaser, and having notice appellant. No counsel appeared for the aptitle, the rights of innocent persons are not to pellees. be prejudiced through bis negligence.
Mr. Mason. The appellant is a purchaser for
valuable consideration without actual notice, HE appellees, John H. Ware and others, and holds the land in controversy by patent Virginia line on the continental establishment, The heirs of John Hockaday, deceased, are filed their bill in the Circuit Court of Ohio proceeding by bill in chancery to recover the Against the appellant, Henry Brush, and land, on the alleged ground that the assignagainst others, for the recovery of certain landsment of the claim of their ancestor to bounty in the State of Ohio, in the military reserland was made by his executor without au
Note.-That patents for lands may be set aside thority, and, consequently, that their rights are for fraud, see note to 6 L. ed. U. 8. 381.
not devested or impaired by that transfer.
Having acquired the legal title without no- 2. Because the purchaser, though put upon tice of any adversary claim, the appellant is inquiry by facts already known, cannot, by entitled to the aid and protection of the court; the exercise of ordinary diligence and pru. "and upon this principle, that all men who dence, arrive at the knowledge of other facts stand on equal ground shall have equal equity; necessary to be known. because the court cannot do anything for one 3. Because in the case of military warrants, without injuring the other." No title can be they are issued by the authority of a sovereign better than the title of such a purchaser. If State, in pursuance of law; and the legal prehe has a legal title, the court cannot interpose. sumption is that its officers have performed Lord Drogheda v. Malone, Finley's Digest; their duty in executing the trusts confided to cited in note to Mitford's Ch. Pl. 3d Am. ed. p. them. 340.
4. Because, lastly, such warrants are trans96*] "Is the appellant affected by construc- ferable by assignment, and ought to pass, like tive notice.
commercial paper, into the hands of a bona Presumptive notice is where the law imputes fide purchaser, discharged from all equities, of to a purchaser the knowledge of a fact, of which he had not actual notice. which the exercise of common prudence and These propositions he hoped to maintain, ordinary diligence must have apprized him. As both upon reason and authority. where a purchaser cannot make out a title but The doctrine of constructive notice has been by a deed which leads him to another fact, too long established to be now called in queswhether by description of the parties, recital tion. Therefore, it is not denied to be law, as or otherwise, he will be deemed connusant applied by courts of equity to deeds and other thereof.
instruments of writing for the transmission of Constructive notice is, in its nature, no more real estate from one individual to another. than evidence of notice, the presumptions of Public grants are supposed to rest upon a dif. which are so violent that the court will not al. ferent foundation from that of private convey. low of its being controverted. 2 Sug. Vend. ances. They emanate from the sovereign power 292; Newl. Cont. 511.
of the country, according to certain rules and In Dexter v. Harris (2 Mason's C. C. Rep. forms of proceeding prescribed by itself, for 638), Mr. Justice Story says: “There is no the regulation of its own action. And when such principle of law as that what is matter of so issued, no matter what recitals the patent record shall be constructive notice to a pur. may contain, “every man has a right to draw chaser. The doctrine upon this subject, as to from the existence of the grant itself,” the "inpurchasers, is this, that they are affected with ference that every prerequisite has been perconstructive notice of all that is apparent upon formed,” and that these rules have been comthe face of the title deeds under which they plied with on the part of the grantor. The claim, and of such other facts as those already legal presumption is in favor of the validity of known necessarily put them upon inquiry for, every grant issued in the forms prescribed by and as such inquiry, pursued with ordinary law." diligence and prudence, would bring to their These presumptions are not understood to knowledge. But of other facts extrinsic of the exist in favor of deeds and other transactions title, and collateral to it, no constructive notice between private citizens; on the contrary, such can be presumed, but it must be proved.” deeds are not of themselves proof of title, and
In Flagg v. Man, 2 Sumner's C. C. Rep. 556, can be made so only by the aid of extrinsic the same learned judge, after stating that con evidence. structive notice could not be rebutted, thought *A deed or will is merely a link in the (*98 that the cases he had referred to ought to "ad. chain of title, of which a patent is the begin. monish courts of equity in this country, where ning. The former transmits a legal title al. the registration of deeds, as matters of title, ready in existence--the latter creates the legal was universally provided for, not to enlarge the title, and brings it into existence. doctrine of constructive notice, or to follow all A public grant is not only an appropriation of the English cases on this subject, except of the land, but is itself a perfect title. Green with a cautious attention to their just appli- v. Lighter et al. 8 Cranch, 247, 248. cation to the circumstances of our country, and Officers are appointed and commissioned by to the structure of our laws."
the government for the express purpose of con. Chancellor Kent (4 Com. p. 172, old ed.) de ducting and supervising all the preliminary clared, “It was, indeed, difficult to define, with proceedings from the origin to the consummaprecision, the rules which regulate implied ortion of the title; and when these incipient constructive notice, for it depended upon the measures are completed, and the grant issued, infinitely varied circumstances of each case.” | the law presumes that the government agents I shall contend that the doctrine of construct have performed their duty, and that the grant ive notice is not applicable to grants for land is valid. In one word, it is a legal presumption issued by public authority, nor does it apply in favor of a patent that there are no defects to the purchaser of a military land warrant behind it, by which it can be invalidated or issued by the State of Virginia, nor to the pur avoided. But, notwithstanding this presump97*] chaser *of an entry or survey in the tion, it is admitted that defects may, in fact, State of Ohio, made in virtue of such warrant. exist. And hence, it is contended on the other
1. Because there is a legal presumption that side. that if the patent contains recitals which the acts of the public agents employed to su would fairly conduct an honest inquirer to the perintend and conduct the proceedings from the discovery of these defects, a purchaser is justly commencement of an inceptive title to its con chargeable with notice of them, whether he summation in a grant, have been in conformity made inquiry or not. And this upon the prinwith the law.
ciple that he is guilty of crassa negligentia, in
not examining the nature and extent of a dannounced by courts of justice; and are, ordi. ger of which he had thus received notice. Will narily, far more difficult to revise, if erroneous, the law impute gross negligence to a purchaser than the latter. *Judicial power, by (*100 for omitting to search for defects in the origin whomsoever exercised, is judicial power still, of his title, in a case where the law, at the and its determinations, whether announced same time, presumes that no defects exist? Is from the bench or at the council table, have all not one presumption inconsistent with the the authority of adjudications made in conother? Can they both exist together in the formity with law, and are entitled to be resame case? And if they cannot, which ought spected as such. The President prescribes the to yield? Can it be tolerated as just, in any form of the grant, and decides from the evi. system of jurisprudence, that the law should dence before him whether a patent ought to is. first invite the confidence of the purchaser, and sue; and whether the applicant, or which of then turn against him, and treat that very con- the applicants, if more than one, is entitled to fidence as criminal ?
have the grant. The executive of the United States has au The presumption of law is that he has dethority to issue patents to purchasers of the cided these questions correctly; and, therefore, public lands. Indeed, it is one of the duties the purchaser is not obliged, in order to proimposed upon him by the laws of Congress; tect himself, to examine the grounds of the and to see that the laws are faithfully execut. decision. ed, is as imperative on him in this branch of This is a contest between parties claiming the public service as it is in any other. In the under the same title. discharge of that duty; the exercise of a wider In this case, the patent is valid upon its latitude of discretion and judgment than is per- | face; it was not issued without authority; it 99*] mitted in most other cases, *is neces was not protected by statute; the United sarily confided to that officer. He must be the States had title to the thing granted, and judge of the sufficiency and regularity of the hence the patent cannot be impeached collatvarious preliminary steps required to be taken erally in a court of law. toward the completion of a legal title, and see In support of the foregoing principles the that these prerequisites have all been complied court are referred to the following cases, viz: with. The nature and extent of this discretion Polk's Lessee v. Wendall, 9 Cranch, 87; S. C. could not be better illustrated than by refer- 4 Cond. Rep. 650; Patterson v. Winn, 6 Cond. ring to the duties required to be performed by Rep. 355; Patterson v: Jenks et al., 2 Pet. the executive under our system of pre-emption Rep. 216; Stringer et al. v. Lessee of Young et laws, daily becoming more complicated. From al., 3 Peters, 320; Boardman et al. v. Lessee of the number of public agents employed, and Reed & Ford et al., 6 Peters, 328; The United from the character and variety of their duties, States v. Arredondo et al., 6 Peters, 727-732; in the disposal of the public lands, the inference Miller v. Kerr, 5 Cond. Rep. 202; Hoofnagle is irresistible that errors must be committed. et al. v. Anderson, 5 Cond. Rep. 271; Bouldin If, under such a state of things, the purchaser et ux. v. Massie's Heirs, 5 Cond. Rep. 252. is to be affected with notice of these irregulari. It is a presumption of law that public agents ties, and that, too, after the emanation of the and officers, appointed by government, have patent, there can be no security in land titles, properly executed their office and complied with no confidence in the action of the government. the law, in discharging the duties imposed on
But ought not the acts of the highest officer them. Jackson v. Marsh, 6 Cow. 281; À Cranch, in the republic, when performed in the execu- 431; Taylor v. Brown, 5 Cranch, 242; 9 Cow. tion of a function prescribed by law, and re- 110; 19 Johns. Rep. 347; Buller's N. P. 298; quiring the exercise of judgment and discre- Williams v. The East India Company, 3 East's tion, to be regarded by the citizen as valid and Rep. 192; Strother v. Lucas, 12 Peters, 437. conclusive!
Every act required to be done from the comA contrary presumption, or the absence of mencement to the completion of a military any presumption in favor of the acts of a pub title, derived from the laws of Virginia, is lic officer, when performed within the sphere of either performed by, or submitted to the cog. his duty, would make it necessary for the nizance of, an officer appointed for that particprivate citizen, if he would avoid the conse- ular purpose. quences of constructive notice, to visit the land
Now, as there is a legal presumption in favor office and examine the records there; and at of the acts of these officers, I maintain that Washington city, to satisfy himself that the there is no place for the application of the officers had fulfilled their duty, before he could doctrine of implied notice to this class of venture to become a purchaser. Upon this titles. The idea *of presumptive notice [*101 theory, he must rejudge, and at his own peril, is met and repelled by an antagonist presumpwhat had already been adjudicated by a compe- tion. tent officer, charged with that particular duty. Again, the distinction between a patent
In such a case, he might differ from the of- issued by the sovereign authority and deeds ficer, and the court from both.
from one citizen to another, is well illustrated The executive of the United States, in issu- by the fact that the former, unless it is void ing patents for land, is required to perform, upon its face, or has issued without authority, and does perform certain acts of a judicial or is prohibited by statute, can only be set nature. And when an executive officer acts aside by a regular course of pleading, in which judicially, as he often must for the idea of a the fraud, irregularity, or mistake, is directly perfect separation of the powers of govern- put in issue. And the State only can take ad. ment is a mere abstraction, and wholly un- vantage of an improvident or mistaken grant. attainable in practice, his decisions are as valid, 3 Black. Com. 261: 1 Mum. 134: 2 Wash. 55; 4 and have the same effect as judgments pro- | Monroe, 51; 4 Bibb, 329; 5 Monroe, 213; 12